April, 2009

Summary: In what may be a variation on the model of the RIAA campaign against illegal music downloaders, AP has launched an assault on the “free” use of news on the Internet–not just their feeds but, apparently headline links. A part of this assault is a suit in US district court in New York against All Headline News Corp., a news aggregator. That court just denied a motion to dismiss the suit, applying the principle of “hot news” to online news for the first time. One point for AP. That decision and the legal theories underpinning the “assault” are connected. Add another point for AP. (Please note that we posted this entry in our other blogs, among them, globalgeneralcounsel.wordpress.com, globalstrategic.wordpress.com and digitaldumonde.wordpress.com.)

AP recently announced that it is fed up with the misuse of its news feeds-an understandable lament given that its customers (newspapers) own AP. You may be hearing echoes of the famous move, Network, and they are more than echoes. At the annual AP board meeting, the chairman, Dean Singleton said “We are mad as hell and are not going to take it anymore.”

We take no position on whether this is a good or bad thing. Many, many talking heads (“typing hands” for a new name for bloggers?) are decrying what they see as a frontal assault on the doctrine of “fair use.” We do not see it that way. We do see it as an opportunity to clarify not only the application of that doctrine online but also a way to discuss, and eventually clarify, the appropriate business models for online news and information.

A Few Details

They plan on policing the misuse of copyrighted material. How is a matter of speculation. AP has signed up with Attributor, a company with technology that can track use of digital information (stories and photos) that have a digital “fingerprint.” Armed with that information, AP could demand some portion of ad revenues from sites using the offending materials in a manner beyond the limits of the “fair use” doctrine. (You heard it here first, by the way. We wrote several weeks ago that demands by newspapers for such revenue are not unreasonable as a move to increase revenues for online newspapers.)

Fair Use May Change

We get it. We might not support the approach (and we might also support it) but fair use has been strained to, if not beyond, the limits of credulity to justify online use of information created by others, for which the copyrights are also owned by those others. In these situations-where a legal doctrine lags too far behind market development-the doctrine becomes the focus of legal assaults and the consequences are a changed doctrine. Regrettably, the public debate on this matter has begun to take on ideological “hate” language that relies more on ad hominem attacks than reasoned analysis and argument (in the “rhetoric” sense of that word).

The First Salvo: All Headline News.

AP is going after All Headline News, a news aggregator. They have been accused of stripping attribution (including copyright notice) from AP articles and re-publishing them without any changes whatsoever. Again, we take no position on what they are doing. AHS filed a motion to dismiss, which was denied by the district court in an interesting opinion.

Why? Because the court anchored its action to the “hot news” doctrine from 1918 (an opinion from a case that arose from the start of the business of the real-life model of our favorite film character, Citizen Kane). There, news that is so “hot” (like breaking news) becomes the quasi-property of the people creating the news stories in the first place. Whatever your opinions on the doctrine, this is the first time that “hot news” has been applied to the online news world.

So What?

We discern a certain theoretical strategy behind AP’s approach, something that seems to have escaped notice with all the screaming against AP now underway. In a sense, hot news can become something of an argument against a “fair use” defense. That is not quite it-but we will leave that sentence in, anyway. Rather, finding the applicability of the doctrine, the court gave AP the basis for arguing “misappropriation.” That can become the basis of a legal theory that differs from mere infringement. In a simple manner, it can be explained that the word is the civil law equivalent of “theft” in the criminal context. Putting aside discussions of legal theories, strategies and tactics, the opening into this legal argument carries with it the potential of using “freighted” language to use in the PR battles that AP faces and will continue to face.

Information Wants to Be Free??

That rallying cry has energized much of the discourse that coincides with the explosive growth of all things digital. Whether something as diffuse as “information” can be called something singular in that context is one thing; whether it can “want” anything is another. But that’s not our point.

There might be a tectonic shift underway (OK, warning: Now we’re getting really speculative). Most obviously, the collapse of the newspaper industry alarmed people (OK, primarily the pundits and shareholders and employees but you get the point) enough for alternatives to “free” to be openly discussed as new (or recycled) business models. At an even more abstract level, the conservative interpretation of the “free” market is now in retreat (rightly or wrongly is not our point), and so also might other ideological positions that tend toward a libertarian bent.

We don’t know. But we do know that AP has a fight ahead of it–and it is a good fight. The outcome might not be what AP wants–or what anybody wants–but it will be a changed world because of it.

April, 2009

Summary: If you remember the joke to which that title is a punchline, you’ll get the gist of this blog–The US stimulus package includes $50m for artists and art non-profits, but . . . there is a catch. Well, actually, there are many catches. What did you expect? Artists are not like banks–too big to fail.

The good news is that the US stimulus package includes (some) money for the arts. The bad news is that recipients have to jump through a lot of hoops–most of which are only now becoming available in the three-ring circus of the modern world (OK, OK, so I couldn’t resist the metaphor).

The NEA will administer the money, evidently through what are essentially state and regional “block grants.” The bad news? You have to have been a recipient of an NEA grant in the last four years, as measured by applicants through April 2d of this year.

Summarizing the details would be like trying to describe the network in our offices. It is mind-numbingly dull and really complicated. And it doesn’t always work.

April, 2009

Summary: If a museum has important materials that are, essentially, in the public domain, can they use the fair use doctrine of “transformative works” as a defense to protect further use of the material? Good question. In this first piece we will start with a discussion of the doctrine of “transformative works.”

You want to protect digital distribution of materials in your museum. Can you use the doctrine of “transformative works” by, for example, digitizing the original material?

The Hypothetical

Suppose you are a museum with materials that either were not copyrighted in the first place (because they were created before the doctrine of copyright arose) or because they have fallen out of copyright–and are, arguably, in the public domain. You digitize it and then someone copies that digitized work.

In this case, the use of the doctrine differs from its usual application. Typically, transformative work is an affirmative defense against a claim of copyright infringement by the copyright holder of the original work against the creator (and/or copyright holder) of the new work derived from that original work.

In other words, there are two parties. Here, however, you are the same party on both sides (in one sense) BUT you are using it against the third party who copied the digitized copy.

The Doctrine

The doctrine (or principle) of transformative work falls under the larger doctrine of “fair use.” We will not go into that concept in detail (search for it in Wikipedia). In essence, someone takes an original work and changes it. Most of the cases have been about taking part of the original work (or all of it) and making it a part of another work. (In our case, it is oonly a digitization of the original work).

One commentator reduced it to these principles:

The commercial or noncommercial nature of the user’s use of the copyrighted [i.e., the original] work.

Does the user’s use of the copyrighted work conform to the fair use purposes contemplated in Section 107?

The degree of transformation from the purpose or function of the copyrighted work compared to the purpose or function of the new work.

Affirmative Defense

Please keep in mind that this phrase, “Affirmative Defense,” means that it is raised by the defendant once he or she has been challenged for copyright infringement. (A recent lawsuit has been launched the other way around: A plaintiff is suing to claim that his re-working of a photo of Barack Obama is a transformative work.) In any event, it reinforces the principle of copyright law in the US: The various doctrines are applied on a case-by-case basis.

Next Blog: Applying the Principles.

In the next post on this topic we will apply these principles to the hypothetical.

February, 2009

Digitizing a museum collection seems like a panacea—to risk political incorrectness, the Holy Grail. For years museums and various commentators have praised the benefits. While there are many reasons cited, basically, it all comes down to greater access—for scholars and other users.

But is the benefit of improved access worth the risks?

(By way of explanation, when we speak of “digitization” we also mean the concomitant access to the digital information of the collection via the Internet.)

The main risk is copying. Yes, that’s right. Copying. Once there is a digital version of an item, then it can be copied. Almost perfectly. It is not difficult for the digital image to be produced in commercial quantities.

Most people think of a painting (or other graphic representation), but, actually, it is worse with a physical object. With the exact dimensions now available—and the image usually in 3-D—then it, too, can be created in commercial quantities.

If reproductions are a critical or potential revenue source, then you can imagine what impact this could have. And, of course, the risk also means that quality may suffer.

A second problem is also revenue-related. If someone else has access to the digital database of the collection they can, in theory at least, collect advertising revenue. Think Google’s book-scanning endeavor.

Of course, it depends on what the museum wants to accomplish with digitization. It is not a bad thing, per se, just one with risks that should be explored.

January, 2009

We work with many people in the art world and museum world and thought it would be good to start a blog to discuss what everyone in the related ecosystems can do–and shouldn’t do–in the 21st century. Think about digital opportunities (and risks); think about provenance; about research; about your visitors; about fund-raising. Think about whatever topics you wish–and post your thoughts here and reply to other posts.

This blog is brand new so we have not added pages about why this site exists (other than this post), who we are and the like. You can visit globalstrategic.wordpress.com to see some of that information–and stay tuned!!